Temporary Visa Options for Foreign Physicians

For many physician recruiters, finding the right physicians for their hospitals and health care centers can be a daunting task. As many recruiters know, not only do the physician applicants come from a variety of training backgrounds but the applicants also come from a variety of racial, cultural, and ethnic backgrounds. Physicians who are not currently U.S. citizens or permanent residents may throw a wrench in what may otherwise be a smooth hiring process for the physician recruiter. However, the U.S. immigration process should not deter physician recruiters from seeking highly talented and trained foreign physicians.

These two articles will hopefully clarify the myriad of issues that may come up in the recruitment, hiring, and retention of foreign physicians. Part one will review the temporary visa options for foreign physicians and their employment authorization. Part two will cover the basic process and options for physicians seeking permanent resident status in the U.S. and for employers seeking to sponsor physicians for permanent residence.

Temporary Visa Options for Foreign Physicians

The most common temporary visas for foreign physicians are the J-1 “graduate medical education or training” visa and the H-1B employer-sponsored visa. However, some may have the option of applying for an O-1 “extraordinary ability” visa, and those from Canada or Mexico may be eligible for a TN visa. On some occasions, foreign physicians and medical graduates may have authorization to work and stay in the U.S. as a dependent spouse of a visa holder or other grounds as permitted by the U.S. Citizenship and Immigration Services.

Most foreign medical graduates gain admission to the U.S. for the purpose of graduate medical education and training by using the J-1 “graduate medical education or training” visa. The J-1 visa is also often the primary preference of the physician’s medical school and employer. It does not require sponsorship or record keeping on the part of the employer, the institution has no liability in the case, and there are no prevailing wage or employee notification requirements. However, a J-1 visa is far more restrictive for the physician than an H-1B visa. A physician on a J-1 visa has little flexibility in terms of the length of the visa. The possibility of changing programs or moonlighting is very limited. J-1 programs are limited in duration to seven years of progressive training or the period of time normally required for training purposes as set by the guidelines of the relevant American Board of Medical Specialties. Finally, the J-1 visa requires that the physician return to their country of origin for a period of two years before he/she can be eligible for an H-1B visa or permanent residence. This is referred to as the 212(e) two-year home residence requirement of the Immigration and Nationality Act.

Waivers of the two-year home residence requirement of the J-1 visa are available through state and federal programs. To address the severe shortage of physicians in some areas of the country, immigration law provides for a waiver of 212(e) for physicians who practice clinically in a Health Professional Shortage Area (HPSA) or a Medically Underserved Area/Population (MUA/MUP) for at least three years on an H-1B visa. State governments (a maximum of 30 waivers per state are distributed every year), the Department of Veteran Affairs, the Appalachian Regional Commission, the Department of Health and Human Services and the Delta Regional Authority generally distribute the waivers by recommending that the U.S. Citizenship and Immigration Services grant waiver approvals and work visas to physicians who meet each state’s and federal programs’ requirements. Each state and federal program has specific requirements concerning the physician’s field, the hours worked and the area served.

Doctors who are primarily involved in research, as opposed to clinical practice, can also receive a waiver from a government agency. An application containing the physician’s credentials, a summary of the research and its importance, and evidence of the physician’s indispensability to the continuation of the research must be submitted to the U.S. Department of Health and Human Services’ Exchange Visitor Waiver Review Board. The Department of Health and Human Services may then recommend approval of the waiver to the Department of Homeland Security’s U.S. Citizenship and Immigration Services.

Very occasionally, physicians may also qualify for a persecution waiver or an exceptional hardship waiver. If a physician would be returning to the probability of persecution in the country of origin, he/she may be eligible for a persecution waiver. If the physician’s United States Citizen or permanent resident spouse and/or child would suffer more than the expected amount of hardship by returning to the country of origin or by staying in the United States without the physician, that physician may be eligible for an exceptional hardship waiver. It should be emphasized that both of these waivers are highly selective. Because of the limitations and the two-year home residence requirement that accompanies the J-1 visa, most physicians prefer the H-1B visa.

H-1B visas are non-immigrant visas that allow for the temporary employment of professional foreign nationals with a minimum of a Bachelors degree in a specialty field. In comparison to the J-1 visa, the H-1B visa does require more responsibility and liability from the employer, along with additional fees. Foreign medical graduates (FMG) may be admitted into the U.S. with an H-1B in order to engage in direct patient care or as part of a medical training program or to teach or conduct research for a sponsoring employer.

In order to be granted H-1B status, physicians must show that they have the appropriate license or authorization for the state in which they intend to work. In addition, the physician must pass all three steps of the United States Medical Licensing Examination (USMLE) or equivalent in order to qualify for an H-1B, unless the physician graduated from a U.S. medical school. Examinations equivalent to all three steps of the USMLE include the National Board of Medical Examiners (NBME) examination parts I, II, and III and the Federation Licensing Examinations (FLEX) parts I and II. A combination of exams is not allowed even though they may be acceptable for state licensing. Finally, the physician must also demonstrate proficiency in oral and written English by either passing the Test of English as a Foreign Language (TOEFL) or receiving certification by the Educational Commission for Foreign Medical Graduates (ECFMG).

Graduates from U.S. medical schools and some Canadian medical schools are exempt from obtaining ECFMG certification. By regulation, graduates of a medical school in a foreign country and who are nationally or internationally renown in the field of medicine are exempt from the licensing examinations and English language competency requirements.

H-1B employers are required to file a Labor Condition Application (LCA) with the Department of Labor agreeing to several conditions, promising that the H-1B employee will be paid the higher of the actual wage or prevailing wage for the position and that internal notices have been posted in each of the employee’s anticipated work locations, or that notices have been provided to the union representative if applicable. Additional information about the LCA can be found at http://www.lca.doleta.gov/. LCA audits are overseen by the U.S. Department of Labor.

H-1Bs are employer specific, thus if a physician changes jobs, the new employer must file a new H-1B with the immigration service before the physician can begin work. H-1Bs are location specific as well. Before the physician can move to another work location for the same employer, the sponsoring employer and/or physician should consult with an immigration attorney to determine whether or not a new H-1B may be required or if it will be sufficient to file a new labor condition application (LCA) with the Department of Labor.

With the exception of physicians who obtained H-1B status to fulfill their waiver requirements to work in an underserved area, most physicians in H-1B status are eligible to “port” to a new employer upon the filing of a new non-frivolous H-1B petition. This allows the employer to immediately employ a new physician upon the filing of an H-1B petition instead of waiting for H-1B approval. Portability rules can be complicated and a careful analysis of the physician’s non-immigrant history is the best bet to avoid unauthorized employment or a petition denial.

There is a limit to the number of H-1B visas available each fiscal year unless the sponsoring employer is exempt from the H-1B cap such as through affiliation with an institution of higher education. Physicians who receive a waiver (through the Conrad waiver program or other state or federally sponsored program) of the J-1 two-year home residency requirement by agreeing to work in a Health Professional Shortage Area or Medically Underserved Area are permanently exempt from the H-1B cap regardless of whether or not the sponsoring employer is exempt from the cap.

H-1B visas are granted for an initial period of up to three years, with extensions permitted for a total of six years in H-1B status. Exceptions to the six-year limit will be made if an I-140 or labor certification application is filed at least 365 days before his or her 6 years expires. The six-year limit can be a challenge for individuals who participate in residency programs that may take longer than 6 years to complete and for whom the positions may not meet the requirements for labor certification or I-140. Furthermore, if the physician wants to remain in the U.S. to work after completion of their residency, that physician will need to obtain other employment authorization if he or she used most or all of their 6 years of H-1B time for residency training.

The O-1 temporary employment visa is reserved for aliens of extraordinary ability in the arts, sciences, athletics, education or business. The O-1 visa can be a welcome option for highly talented physicians who can prove that they are among the top in their field. O-1 visas require a contract with a sponsoring employer or agent and are granted for an initial period of no longer than three years. Extensions are unlimited and are granted in 1-year increments.

In order to qualify for an O-1, a physician must be able to prove that he or she has substantial accomplishments. Most physicians who qualify under the O-1 category have publications and have played a critical role for institutions with prominent reputations. Being trained at a high level or possessing rare skills is not enough.

There are several advantages to the O-1 category, including: no cap on the number of O-1 visas granted in any fiscal year, no prevailing wage requirement, no minimum degree requirement, and more relaxed license requirements. The H-1B visa, in contrast, has annual quotas, strict license, credentialing and wage requirements, and a six-year limit.

Foreign medical graduates who enter the U.S. with a J-1 visa and are subject to the two-year home residence requirement 212(e) are eligible for an O-1 visa. However, they cannot change status in the U.S. and must process for their visa abroad at a U.S. consulate or embassy.

As part of NAFTA, physicians from Mexico or Canada who graduated from a foreign medical school may be eligible for a TN visa if their position in the U.S. primarily involves teaching or research. Patient care is permitted as long as it is incidental to research or teaching duties. If the physician graduated from a U.S. medical school, he or she can practice clinically with the TN.

Other authorization to work and stay in the U.S.

Physicians who are dependent spouses of primary J-1 and L-1 visa holders may be eligible for employment authorization as a J-2 or L-2. Employment authorization in these categories are limited to the duration of the primary visa holders visa status but J-2s and L-2s are eligible to accept employment with any employer.

Conclusion

Physicians entering the U.S. for graduate medical education, training, or to practice medicine must not only meet the basic requirements to practice medicine in the U.S., they must also meet the various requirements and restrictions placed on each visa category.

The visas mentioned in this article are temporary in nature and each visa comes with specific limitations on duration, they may be employer and location specific, and there are specific qualifications for eligibility in each visa category. Successful application in each visa category requires the physician and employer to fully understand the limitation and requirements placed on each category. A basic understanding of the various temporary visa options available to physicians and physician recruiters should allow physician recruiters to expand their search into a pool of highly skilled and trained workforce.

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